“Gay cake” row — final serving?

This is because the European Court of Human Rights recently declined to hear the case. This decision was based on a technicality; however, it may mean an end to this judicial saga.

That said, recent publicity and comment has once again highlighted how often the case has been misunderstood and misinterpreted. And that could set traps for unwary employers.

Background

The background is, of course, a bakery in Belfast refusing to produce a cake with a message proclaiming “support gay marriage.”

Incidentally, the order also asked for a picture of Sesame Street characters Bert and Ernie. I'm not a copyright lawyer and do not represent Bert. Ernie or any other muppets, so I won't comment on this aspect.

Central to the case was that the bakery owners genuinely believed gay marriage to be wrong on the basis of certain biblical teachings and didn't want to make a cake bearing a slogan they fundamentally disagreed with on religious grounds.

As a result, despite initially accepting the order, they later refused it and returned the purchase price – which we are told was around £35.

The refusal

This gave rise to the customer claiming discrimination on the grounds of sexual orientation — with the suggestion he was not served because he was gay. This was initially successful in the Northern Irish courts.

Despite claims resulting in damages of only £500, the bakery appealed and the case eventually made its way to the UK Supreme Court which overturned the original decision and found in favour of the bakery.

Misunderstandings

Some commentaries, including certain evangelical Christian groups, have seized on the decision as a victory for free speech, in general, and for the rights of religious expression, in particular.

Others have raised concerns this opens the door for open expressions of anti-gay sentiment under the cover of religious belief.

It's correct the case did involve what can be a very difficult and sensitive balance between the rights of different characteristics (here religious belief and sexual orientation) which are protected in law.

However, any suggestion it provides strong support for the expression of religious beliefs when these may offend those of particular sexual orientation is wrong.

Equality laws

In fact, the case turned on how the equal legislation works in practice.

Remember the issue was whether the bakery had unlawfully refused the customer’s order. If they had done so on the basis of the customer’s sexual orientation, or any other protected characteristic, then the bakery’s actions would have been unlawful.

However, that is not what the courts decided happened: the refusal was nothing to do with the customer, it was all about the bakery owners’ religious views.

That support for gay marriage goes well beyond those who are gay was key, so refusing to bake the cake was not equivalent to refusing to serve gay people. The bakers would have declined the same request no matter the customer’s sexual orientation.

In short — it wasn’t you — the customer; it was us — the bakery.

Implications

How does this sit with other controversial decisions balancing religious views and sexual orientation?

For example, we've seen cases before where B&B owners have refused to provide a gay couple with a double bed. The refusal here was also said to be on religious grounds.

In this case, the court decided the owners were refusing to serve people because they were gay, and that's entirely unlawful.

Central to the bakery case was the finding the bakery had no issue with serving gay customers.

That doesn't mean the case can be dismissed as turning on a legal nicety, in particular it is worth highlighting we may not be obliged to convey a message we fundamentally disagree with if it impacts on a protected characteristic.

Even here there are clear limits on a wider application of the case.

For example, a vegan could not accept a job at a butchers and then refuse to serve customers, whatever the strength of their belief.

Relevance to employers

The bakery case was also based on the equality laws applying to the supply of goods and services.

I would be very cautious about seeking to apply this to the workplace.

For example, it does not support an employee who chooses to express views at work that, for example, advocate the moral superiority of heterosexual relationships. This could clearly cause real offence to people of any sexual orientation who reject that view, and in turn lead to claims of harassment.

Plus, courts have to be on the look-out for potential discrimination, and this can involve a subtle analysis.

It could well be there will be cases where what is said to be a political or religious comment betrays an underlying discriminatory attitude.

As such, while this is going to be seen by some as a victory for freedom of speech, in my view the old etiquette that we should avoid discussion about religion and politics remains very sensible, at least in the workplace.

Otherwise the 'gay cake' case could leave a bitter taste for employers.

If you're interested in reading more commentary from the employment team, take a look at our news and views section.